Delegated Legislation in Tanzania

DELEGATED LEGISLATION IN TANZANIA (LECTURE 1)
(1) Introduction to legislative powers (2) Other names for/of 'Delegated Legislation' (3) Definition of 'Delegated Legislation' ( ) Legal !asis of 'Delegated legislations' in "an#ania$ (%) &ho ma'es 'Delegated Legislation(' ()) *ategories (t+pes/forms) of 'Delegated Legislation' (,) -tatus/position of 'Delegated Legislation' in relation to .rincipal Legislation (/) "he 0ationale of having 'Delegated Legislation' Introduction to legislative powers (a) "he principle of -eparation of power 12rticle of chec' and !alance$ of the "an#ania *onstitution3 and the concept
(!) Legislative powers of the .arliament 12rticle ) (1) (2) of the "an#ania *onstitution3 and the concept of -upremac+/ sovereignt+ of the .arliament$ Other names for/of 'Delegated Legislation' (a) -u!sidiar+ Legislation (!) -u!ordinate Legislation (c) -econdar+ Legislation
Definition of 'Delegated Legislation' Delegate: 'The act of granting another the power to act on one's behalf' $ (.er &e!ster's 4ew &orld Law Dictionar+)$ Delegated Legislation:The Interpretation of Laws Act ( ap! "# $%: &''&(# section ) 5-u!sidiar+ Legislation56 means an+ order6 proclamation6 and rule6 rule of court6 regulation6 notice6 !+7law or instrument made under an+ 2ct or other lawful authorit+$ The O*ford ompanion to Law (!+ David 8$ &al'er6 19/26 p$ 3 ,)$ 5Delegated Legislation5 means legislation made not !+ .arliament !ut !+ persons or !odies on whom .arliament has conferred power to legislate on specified su!:ects$ +i,ipedia# the free enc-clopedia (availa!le online) 5Delegated Legislation5 is a law made !+ an e;ecutive authorit+ under powers given to them !+ primar+ legislation in order to implement and administer the re<uirements of that primar+ legislation$ It is law a made !+ a person or !od+ other than the legislature !ut with the legislature's authorit+$ Legal .asis of 'Delegated legislations' in Tan/ania "he *onstitution of the =nited 0epu!lic of "an#ania6 19,, (0>? 2@@%) 2rticle 9,(%) "The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament from enacting laws making provisions conferring on any person or department of overnment the power to make regulations having the force of law or conferring the force of law on any regulations made by any person! or any department of overnment"" 0arent/%na.ling/1other/0rimar- Act 52n >na!ling 2ct5 is referred to as a principal legislation (made !+ the .arliament) which confers legislative powers to individuals (pu!lic/civil servants)6 department or agenc+ of the government to ma'e delegated legislation$ Aor e;ample6 -ections 1%36 1%%6 1)@6 1)16 1)26 1)36
1)/6 1)9 of "he Local Bovernment (District 2uthorities) 2ct 10> 2@@23 and -ections //6 /96 9@ and 9 of "he Local Bovernment (=r!an 2uthorities) 2ct6 10> 2@@236 section 12 of "he 2ppellate Curisdiction 2ct (0>? 2@@26 *hief Custice to ma'e rules3$ 2223ection 44("( of The Arms and Ammunition Act ($%: &''&( provides that6 5the 8inister ma+6 after consultation with the 2rms 2uthorit+ for "an#ania Dan#i!ar6 ma'e regulationsE$5 +ho 1a,es Delegated Legislation5 4ormall+6 the >na!ling 2ct provides (with certaint+) a person or a government !od+ (whatever the case ma+ !e) responsi!le to ma'e a delegated legislation$ In practice6 delegated legislations are made !+ 8inisters6 Local Bovernments/2uthorities6 Directors6 *ommissions6 Foards6 the *hief Custice6 the -pea'er of the 4ational assem!l+6 the .resident and etc$ ategories (t-pes/forms( of 'Delegated Legislation' ("he *ommonwealth approach) (i) -tatutor+ Instruments (Delegated Legislation 4ational wide in scope)? Delegated Legislations which inserts/fills detail to 2cts of .arliaments (namel+ as 0ules6 0egulations6 -chemes and Orders)$ "he+ are issued !+ a respective 8inister6 or "he *$C (*ourt 0ules)$ (ii) Orders? 8ade !+ the 8inister to dissolve or create a pu!lic !od+ or setting the date for commencement of an 2ct of the .arliament$ (iii) 0egulations? 8ade !+ the 8inister setting out in detail how an 2ct of the .arliament is to !e implemented$ (iv) 0ules? 8ade !+ the 8inister6 *ourts/"ri!unal officials setting out procedures (v) Directives/Directions/proclamations? made !+ the 8inister (or an+ other relevant authorit+) giving !inding instructions to pu!lic !od+ a!out how it should discharge its powers$ (vi) Orders of *ouncil? (In =G) made !+ the Lords of the .riv+ *ouncil in their own right$ Intended to regulate !odies which the .riv+ *ouncil e;ercises a supervisor+ function6 e$g$ professional !odies and the higher education sector$ (vii) F+ Law (Delegated Legislation with limited application) Delegated Legislation made !+ Local 2uthorities to deal with matters which affect their localit+$
(viii) Orders in7*ouncil (In =G)? "he+ are made !+ the Hueen on the advice of the Bovernment and are usuall+ made when .arliament is not sitting$ "he+ can !e used !+ the Bovernment in emergenc+ situations$ 3tatus/position of 'Delegated Legislation' in relation to 0rincipal Legislation Delegated Legislations are inferior/ su!ordinate to .rincipal Legislations (i$e$ an+ Delegated Legislation which is inconsistence with an+ 2ct of the .arliament is null and void)$ Iowever6 a Delegated Legislation which is properl+ enacted !ecomes part and parcel of the law of the land (li'e an+ other law) capa!le of !eing enforced in the *ourt of law$ -ections 1 and 2 of *ap$ 1 provides thatJ "4#$#% A reference in a written law to a written law shall be construed to include a reference to any subsidiary legislation made under that written law" $&% A reference in a written law to an Applied Act shall be construed to include a reference to any subsidiary legislation made under that Act" 4&" Any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made"" The $ationale of having Delegated Legislation' (i) "o reduce .arliament's wor'load/the .arliament does not have time to legislate on ever+thing/to save .arliament's time$ (ii) Decentrali#ation and devolution of powers to local authorities$ (iii) "o meet local variation (iv) "o meet emergenc+ or contingenc+ matters6 e$g$ war6 pu!lic health (v) "o ensure fle;i!ilit+ in law ma'ing in dealing with changing circumstances (vi) "o handle technical aspects of the su!:ect matter$
1iscellaneous KK'elegatus non potest delegare (delegated powers cannot !e delegated an+ further) v/s delegated legislation KKAlter ego principle (acting in other self/e;tended arm) v/s delegated legislation$ 6ui/ for the recap! (0relude to lecture II( (1) Define what is meant !+ delegated legislation and how delegated powers are granted$ (2) Descri!e the main forms of delegated legislation$ (3) Identif+ the main reasons for delegated legislation$ ( ) Differentiate !etween >na!ling 2ct6 and >na!ling .rovision$ (%) -how the !asis of 8inisters and local authorities to ma'e delegated legislations( ()) &ho e;ercises power to ma'e delegated legislation(
$%7%$%8 %3: Available at the law collection! (')* + *ain ,ibrary" De smith# et al (19/1) Constitutional and Administrative ,aw6 th ed$6 .enguin Foo's Ltd$ (KKLaw GD 393@$ D3)$ Tha,,er# !9 (:ustice Ta,wani( (199/) ,ectures on Administrative ,aw6 3rd >d$ Luc'now6 >astern Foo' *o$6 India$ (KKLaw G.4$ " %)$ Olu-ede# 0! (19,3) Administrative ,aw in -ast Africa6 (19/1 0eprint)6 4airo!i6 Gen+a Literature Fureau$ (KKLaw G0D$ O%1)$ +ade and 7ors-th (2@@@) Administrative ,aw6 /th ed$ O;ford6 O;ford =niversit+ .ress$ (KKLaw GD /,9$ &3)$ 1andi# I (mimeo) ',ecture .otes in Administrative ,aw'6 =D-8 L -chool of Law$

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DELEGATED LEGISLATION IN TANZANIA (LECTURE 1)

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